Asa Kasher on a prime minister buried in indictments and a constitutional crisis

Asa Kasher is the eminent Emeritus Professor of Philosophy and Professional Ethics from Tel-Aviv University and Israel prize laureate from 2000. He has lived through every election since the State was established and helped draft the Ethical Codes of Conduct for Israeli government ministers, members of parliament and IDF commanders. In 2008 Kasher agreed with then-leader of the opposition Benyamin Netanyahu when Netanyahu called for the resignation of Prime Minister Ehud Olmert. Netanyahu called for Olmert’s resignation even before his indictment and argued that a prime minister who is buried “up to his neck in investigations” is conflicted and cannot be trusted to give his full attention to running state affairs. For Kasher, Netanyahu’s change of heart in the face of his own indictments is unconscionable and hypocritical beyond belief.

We are a few days away from an unprecedented second election in which the sitting Prime Minister is accused of serious charges involving fraud, corruption and breach of trust. In October the Prime Minister may, if the hearing is not deferred, be indicted. This is likely to trigger a constitutional crisis. If Netanyahu is indicted and refuses to step down the case will most likely end up in the Supreme Court. In a highly contentious political climate the Supreme Court will be asked to decide the fate of the Prime Minister and the country.  So close to the election and indictment hearing, it is critical that we ask the prime minister, Likud and constitutional lawyers more questions about highly probable scenarios that may occur. If we are voting for Bibi but getting Yisrael Katz or Gideon Saar, we need to know. It all hinges on what the Supreme Court will decide.  What are the legal arguments that will be put forward and how will the Court rule?  How will the Likud Party itself respond? The public has a right to hear these arguments now, before the election, so it can help it decide how to vote.

The case for Netanyahu stepping down is based upon the Supreme Court ruling from 1992 in the Deri Case.  The Movement for Quality Government forced the Supreme Court to order former Prime Minister Yitzhak Rabin to fire the then Interior Minister Aryeh Deri following his indictment on charges of corruption, fraud and breach of trust. In doing so, a new legal norm and custom was put into place. According to this ruling, an indicted minister is forced to step down in order to preserve the public’s trust in the government and avoid any conflicts of interest.  It is a strictly legal determination. Indictment equals loss of public trust therefore the minister must step down. Kasher explains that the ethical codes of conduct for ministers in most Western style democracies forbid a minister or prime minister from receiving gifts of any kind no matter how small, if they may apparently put him in a position of owing favors in return for gifts. Here the Prime Minister does not even deny that he received hundreds of thousands of Shekels worth of gifts and rargues that he is the victim of a political conspiracy to oust him.

Netanyahu’s lawyers will argue that the law does not apply to a Prime Minister.  A Prime Minister, according to a separate written law, does not have to be dismissed until after the completion of his trial and all appeals have been exhausted.  Netanyahu’s lawyers will argue that an express written law that allows him to stay in office takes precedence over the principal underlying the ‘public trust’ test and that two election results give him democratic legitimacy. They will imply that it is improper for the court to interfere directly in the political process. The Right will talk about the Supreme Court having too much power and threaten override laws.

The case against Netanyahu will argue that the ethical behavior expected of a Prime Minister  is the highest among all political and governmental leaders and  that so too is the loss of Public Trust when a prime minister is indicted. Kasher explains that Public Trust is not a popularity contest such as winning a referendum or election numerically, but a legal and ethical test that is satisfied after the Indictments are officially issued  and  taking into account other issues such as the ethics expected of a minister or prime minister and the nature of the alleged charges.  There is no jury here – just  the court and past precedents which all point to a clear legal principal that says that in order to avoid conflicts of interest and to preserve public trust in the State and its institutions a minister indicted for a criminal offence or one involving moral turpitude – must resign or be removed from office. According to the logic of this principle there is no difference between a minister and a prime minister. Kasher argues that the loss of Public Trust when a prime minister is indicted is far greater.

Kasher predicts that Netanyahu will not be able to escape the indictments because the law is very clear. Assuming the Supreme Court finds that the elements required to establish a loss of Public Trust have been established it will then order the Prime Minister to step down sparking a genuine constitutional crisis that is unprecedented in Israel.

Public Interest law may also be applied by the Court. In a Public Interest case the court can consider the broader context. Does a reasonable person have sufficient reasons for assuming that the Prime Minister  acted properly when the Police, Prosecutors  and Attorney General all say quite clearly in different cases he stole, took or bribed and that he used his powers for personal gain.

Tomer Naor from the Movement for Quality Government, who bought the original Deri case that established the ‘public trust’ rule concurs with Kasher. He says that it’s a 100% probability that if Netanyahu wins the election,  is indicted and refuses to step down that the case will end up in the Supreme Court. Public interest law will be relevant. The issue of conflicts of interest in performing his job as Prime Minister is critical to his fitness to hold the position.

Regarding the issue of the courts involvement in the political process there is an important distinction. In Israel we elect a party not a prime minister. The resignation of a prime minister doesn’t mean that his party loses power or that the party loses its opportunity to lead a governing coalition. The court can require Netanyahu to step down but the Likud’s political power is preserved giving effect to the recent election results. Forcing a prime minister to resign is an extreme event particularly if its counter to a written law, but the Court is not depriving the leading party of the opportunity to lead or be part of a governing coalition.

This will be the critical moment for Israeli democracy. Will Netanyahu resign when indicted ? Will he accept the decision of the independent Supreme Court?  Or will he attempt to evade it thereby subverting the Separation of Powers,  the Rule of Law,  Public Trust and the Professional Ethics for Politicians. The founders of the State were imbued with the notions of  “freedom and justice”  as set out in the Declaration of Independence  and Kasher believes that these are the  values  with which the Supreme Court will decide the fate of Benyamin Netanyahu.

Attacks on the courts and justice system have aroused concern across the political spectrum. Public statements by three former senior Likud Ministers in support of the Court – Dan Meridor, Benny Begin and  Ehud Olmert – tell you that something is not right.  A committee of Israel’s best lawyers and largest law firms also signaled they would fight to protect the Rule of Law and the independence of the Justice System.  Former Attorney General  and Chief Justice (Aharon Barak) said hypothetically that if a Supreme Court override law was to pass when he were Chief Justice – he would have resigned in protest.

The attack on the Supreme Court and on the separation of powers is an undermining of the foundations upon which the political system was built and the most basic democratic values that we hold dear and upon which the court was established. The erosion of political leadership and ethics that Netanyahu demonstrates does not have to mean the erosion and destruction of the legal and political system that has protected Israel from abuses of power from its inception.

Don’t let one man buried “up to his neck in investigations” destroy it all.